The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT

Before the Court is Defendant Goldmark Property Management, Inc.'s Motion for Summary Judgment (Doc. #68). Plaintiffs filed a response to the motion (Doc. #133). Additionally, the North Dakota Apartment Association filed an Amicus Curiae brief supporting Goldmark's summary judgment motion (Doc. #147), and the United States filed an Amicus Curiae brief supporting Plaintiffs' response to the summary judgment motion (Doc. #153). The matter came regularly on for a hearing on February 16, 2011. The Court, having considered the briefs and arguments by the parties, now issues this memorandum opinion and order.

SUMMARY OF DECISION

Plaintiffs bring this action against Goldmark Property Management alleging discrimination on the basis of disability in violation of the Fair Housing Act. The alleged discriminatory policy is a mandatory application fee, non-refundable deposit, and monthly charge that Goldmark imposes on tenants with disabilities who reside with a non-specially trained assistance animal (i.e. a companion pet). These same fees are waived for tenants with disabilities who reside with a trained assistance animal (i.e. a seeing eye dog). The FHA encompasses all types of assistance animals regardless of training; therefore, Goldmark's policy implicates the FHA. Further, Plaintiffs have met their burden of establishing a prima face case of discrimination and have presented sufficient evidence to create genuine issues for trial on the questions of the necessity and reasonableness of the requested accommodation and whether Goldmark's alleged objective for the policy is permissible under the FHA and not pretextual. Therefore, Goldmark's motion for summary judgment is granted in part and denied in part. It is granted as to Plaintiffs' claim of disparate treatment because no proof was offered of a discriminatory intent. It is denied as to Plaintiffs' claims of disparate impact and failure to make a reasonable accommodation.

FACTUAL BACKGROUND

Fair Housing of the Dakotas (hereinafter "FHD") is a nonprofit corporation organized with the goals of promoting equal opportunity to all individuals seeking housing and eliminating all forms of illegal housing discrimination (Doc. # 24, Second Amended Complaint ¶ 4). FHD brings this action under the Fair Housing Act, alleging Goldmark Property Management, Inc. (hereafter "Goldmark") discriminates against persons with disabilities with regard to its policy on non-specially trained assistance animals. The individual plaintiffs bring this action on their own behalf and on behalf of all persons with disabilities who since June 16, 2007, have either sought housing at a Goldmark-managed property with an untrained assistance animal or occupied a dwelling at a Goldmark-managed property with an untrained assistance animal.

Goldmark designates the buildings it manages as either "pet friendly" or "no pets" (Doc. #70, Aff. of Brad Williams ¶ 7). In "pet friendly" buildings, tenants are required to pay a non-refundable fee and a monthly pet charge. Id. at ¶¶ 7-8. If, however, a tenant needs a specially trained assistance animal for a qualifying impairment, Goldmark accommodates the tenant and waives all fees, regardless of whether the building is designated as "pet friendly" or "no pets." Id. at ¶¶ 8, 12.

On September 2, 2008, Goldmark instituted a policy of charging a non-refundable fee and a monthly pet charge for "non-specially trained" assistance animals (commonly referred to as "companion pets") in "no pets" buildings (Doc. #70, Aff. Williams ¶ 10). This fee is lower than the typical pet fees imposed in "pet friendly" buildings.*fn1 Goldmark contends the fees for the non-specially trained assistance animals are necessary to recoup a portion of the costs associated with the animals, including steam cleaning, carpet replacement, subfloor resealing, baseboard damage, sheet rock damage, vinyl damage, blind replacement, damage to grounds and shrubbery, common area cleaning, odor removal, and labor for feces pickup, and the "non-quantifiable aesthetic loss due to discolored snow and grounds by common sidewalks and exterior common areas." Id. at ¶ 13.

A tenant or prospective tenant wanting to live with an assistance animal in a Goldmark-managed property must complete a questionnaire, pay a $30 processing fee, and provide proof of renters insurance (Doc. #70, Aff. Williams ¶¶ 18 - 20). The processing fee is waived for specially trained assistance animals. Id. at ¶ 21. Tenants or prospective tenants are required to submit their application to Advantage Credit Bureau. Id. at ¶ 19. Advantage Credit Bureau then sends a letter and a form to be completed and signed by a physician, psychiatrist, or psychologist (Doc. #134-14, Advantage Credit Bureau letter and form). Beginning in March 2009, the cover letter from Advantage Credit Bureau informs the applicant that the form "needs to be completed by a qualified professional and at a minimum needs to be counter-signed by a treating physician or psychologist." Id. It also informs the applicant that he or she is to contact Advantage Credit Bureau if the assistance animal requires special training. Id. Goldmark does not provide any written guidance to its tenants or prospective tenants with regard to the meaning of special training (Doc. #134-7, Stephan dep. p. 36 of 71). If a tenant states the assistance animal has training, Goldmark accepts that statement as true. Id. at p. 37.

Goldmark told some of the Plaintiffs in this case about the additional non-refundable pet deposit and monthly pet fee before they applied for approval for an assistance animal and some were told of the additional fees after approval (Doc. #134-1, Decl. of Larry Norstedt; Doc. #134-2, Decl. of Betty Martin; Doc. #142-5, Decl. of Kristina Hilde Carter). Some of the plaintiffs have paid the additional fees and other plaintiffs are unable to afford the additional fees. Id. The most recent cover letter from Advantage Credit Bureau informs the applicant that they will have to provide "evidence of renter's insurance, along with a non refundable assistance animal fee and assistance animal monthly rent." (Doc. #134-14, p. 2). The letter, however, does not contain the fee amounts.

Goldmark moves for summary judgment contending the fees imposed for non-specially trained assistance animals do not implicate the Fair Housing Act as a matter of law. Goldmark further contends that its fees are reasonable and waiver of the fees is not necessary to afford disabled persons an equal housing opportunity.

DISCUSSION

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the moving party to establish the basis for its motion. Donovan v. Harrah's Md. Heights Corp., 289 F.3d 527, 529 (8th Cir. 2002). Evidence must be viewed in the light most favorable to the nonmoving party, and the nonmoving party enjoys the benefit of all reasonable inferences to be drawn from the facts. Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989). If the moving party shows there are no genuine issues of material fact, the burden shifts to the non-moving party to set forth facts showing a genuine issue for trial. Donovan, 289 F.3d at 529.

A fact is "material" if it might affect the outcome of the case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the unresolved issues in a case are primarily legal rather than factual, summary judgment is ...

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